Why not cheat during discovery?

A number of students asked why parties and attorneys in the United States comply with the discovery process. As one student phrased it – – “this is a matter of self defense” – – why would anyone willingly disclose to the other side a document that is harmful to his case?

One major reason is that the consequences are severe and it is easy to get caught. For example, let’s say XYZ company is sued. Mr. A and Mr. B work for the XYZ company. Last year Mr. A sent Mr. B an email on January 5th. But the email is damaging so XYZ company and its lawyer decide to hide the email and not disclose it during discovery. But what if A or B mention the email in a deposition? What if Mr. C knows about the email and mentions it during his deposition? What if Mr. B forwarded the email to D, E, and F? Attorneys reviewing emails might notice that there is a gap in the dates of the emails.

The XYZ company’s computer system will have a record of the email. Witnesses will be asked how they collected and preserved emails. There is a very good chance that the email will not stay hidden for long.

Courts can impose strict penalties against parties who violate discover rules. Hiding the email could result in serious sanctions against XYZ company and its lawyer.

In addition, even a lawyer who is not very honest should at least be selfish enough to realize that his long term interests are hurt if he develops a reputation for dishonesty during the discovery process. Similarly, a company that frequently litigates does not want a reputation for dishonesty during discovery.

On a more positive side, I do think that most lawyers are honest and they take their obligations seriously. Lawyers also tell clients how vital it is to be comply with discovery rules.. In the long run, it is better to deal with a difficult document than it is to try and hide it. If a document is responsive to a discovery request and there are no grounds to withhold it then the document should be produced. Most lawyers, I believe, are not going to play games.